From: WendyMil@cs.com
Sent: Tuesday, September 10, 2002 10:50 AM
To: fdadockets@oc.fda.gov
Subject: Corporations and free speech protections
* The FDA's position should be that public health takes priority over
commercial speech considerations, and the agency should do everything it can
to defend its authority to restrict commercial speech in the effort to
protect public health.
* The FDA should emphasize that commercial speech serves promotional purposes
much more than educational ones. These promotional purposes do not deserve
constitutional protection and -- even when not technically untruthful or
misleading -- may by omission, emphasis or emotional appeal spur consumer
purchasing patterns that are contrary to public health goals.
* The courts rationalize commercial speech protections on the grounds that
commercial speech provides information to the public. If this is the goal --
rather than protecting an inherent right to advertise -- it makes sense for
the government to make determinations about whether the commercial
information actually will educate the public to advance public policy goals.
In many instances, this will not be the case. And regulatory agencies are in
better position to make such determinations than the courts.
* If there are going to be commercial speech protections, it should be enough
for the FDA or other federal agencies to show that regulations reasonably
work to directly advance legitimate governmental goals. The FDA and other
agencies should not be subject to a "least restrictive" test, where they are
forced to show that there was no less speech restrictive means to achieve
their goal. One can always imagine less speech restrictive means -- even if
they are politically unachievable or would fail to work in practice.
* Overly broad commercial speech protections will inappropriately transform
legislative or regulatory decisions about public health issues into
constitutional issues. (This is an argument Justice Breyer made in dissent in
Western States Medical Center.)
* Because corporations should not have any constitutional protections, and
because commercial speech should not receive constitutional protection, the
FDA should press as hard as possible against existing limitations in these
areas. Each person within a corporation is designated in the constitution as
having the right to free speech. Coporations are entities and should not
have the right to free speech. As they wrongly do have this right under
existing court decisions, the appropriate response of the FDA is to push as
hard as possible against the limits of these misguided constitutional
protections.
Please do the right thing and protect the American people from the overreach
of these corporations.
Wendy Miller